Opinion
No. 3:02-CV-1566-D
February 24, 2004
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
This cause of action was referred to the United States Magistrate Judge pursuant to the provisions of Title 28, United States Code, Section 636(b), as implemented by an order of the United States District Court for the Northern District of Texas. The Findings, Conclusions and Recommendation of the United States Magistrate Judge follow:
FINDINGS AND CONCLUSIONS
I. NATURE OF THE CASE
Petitioner filed a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
II. PROCEDURAL BACKGROUND
On November 21, 1979, Petitioner was found guilty of possession of heroin in the 194th Judicial District Court, Dallas, Texas. Petitioner was sentenced to life imprisonment. On December 17, 1981, the Texas Court of Criminal Appeals affirmed the conviction. Petitioner has filed three state applications for habeas relief. The Texas Court of Criminal Appeals denied these applications on or about 1982; July 29, 1998; and June 30, 2002.
On July 11, 2002, Petitioner filed this federal petition. He argues that under the United States Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466 (2000), his conviction is unlawful because the amount of drugs attributed to him were not charged in the indictment and submitted to the jury. The Court finds the petition should be summarily dismissed.
III. DISCUSSION (a) Statute of Limitations
Petitioner filed his § 2254 petition after April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Therefore, the AEDPA governs the present petition. See Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 2068, 138 L.Ed.2d 481 (1997). The AEDPA establishes a one-year statute of limitations for federal habeas proceedings. See Antiterrorism and Effective Death Penalty Act, Pub.L. 104-132, 110 Stat. 1214 (1996). In most cases, the limitations period begins to run when the judgment becomes final after direct appeal or the time for seeking such review has expired. 28 U.S.C. § 2244(d)(1)(A). This period is tolled while a properly filed motion for state post-conviction relief or other collateral review is pending. Id. § 2244(d)(2). The one-year limitations period is also subject to equitable tolling in "rare and exceptional cases." Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998).
The statute provides that the limitations period shall run from the latest of —
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking direct review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.28 U.S.C. § 2244(d)(1).
Petitioner's conviction became final on January 17, 1982. See Tex. R. App. P. 68.2 (PDR must be filed within 30 days after court of appeals renders judgment or overrules motion for rehearing); see also Roberts v. Cockrell, 319 F.3d 690, 694-95 (5th Cir. 2003) (state conviction becomes final for limitations purposes when time for seeking further direct review expires, regardless of when mandate issues).
Petitioner then filed three state applications for writ of habeas corpus. The limitations period is tolled during the pendency of a properly filed state writ. See 28 U.S.C. § 2244(d)(2). He does not state the date that he filed his first two writs. He does, however, state that his second writ was denied on July 29, 1998. He did not file his third state writ until May 18, 2002. See Memorandum p.iii. Any statutory tolling afforded Petitioner during the pendency of his first two writs ended when his second writ was denied on July 29, 1998. Petitioner then waited approximately four years before filing his third state writ. This third state writ did not toll the limitations period because it was filed after the one-year limitations period expired. At the latest, Petitioner's federal petition was due one year from the date his second state habeas petition was denied, or on July 29, 1999. He did not file his federal petition until July 11, 2002. His petition is therefore untimely.
The Court will assume that Petitioner filed his first state habeas immediately after his conviction became final and that the limitations period was statutorily tolled until his second petition was denied on July 29, 1998.
Petitioner argues his petition is based on Apprendi, which he states creates a new rule of law that was not available at the time of his conviction or at the time of his previous state petitions for habeas relief. The Fifth Circuit, however, has held that Apprendi is not retroactively applicable on collateral review. See United States v. Brown, 305 F.3d 304, 310 (5th Cir. 2002); Kunkle v. Dretke, 352 F.3d 980, 986 n. 1 (5th Cir. 2003). Finally, Petitioner has stated no basis for equitable tolling of the limitations period. The petition should therefore be dismissed.
RECOMMENDATION:
The Court recommends that the petition for a writ of habeas corpus be dismissed with prejudice as barred by the one-year limitation period. See 28 U.S.C. § 2244(d).